Today, the Ninth Circuit vacated 1324 convictions in a pair of decisions.
First, in United States v. Hanson, --- F.4th ---, No. 17-10548 (9th Cir. 2024), on remand from the Supreme Court, the Court vacated Helaman Hansen’s convictions on two counts of encouraging or inducing an alien to come to, enter, or reside unlawfully in the United States for private financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i). The Court held that the Supreme Court’s decision in this case, United States v. Hansen, 599 U.S. 762 (2023), compels the insertion of a specific intent mens rea element into the jury instructions for charges under § 1324(a)(1)(A)(iv). Under Hansen, the term "encourage or induce" now means the intentional encouragement of an unlawful act or the provision of assistance to a wrongdoer with the intent to further the commission of an offense. Because the jury instructions for the two counts omitted this element, the instructions were erroneous.
Second, in United States v. Murad, --- F.App'x ---, No. 23-50026 (9th Cir. 2024) (unpublished), the Court vacated Wafa Hirzalla Murad's convictions for bringing into the United States an alien for financial gain and unlawfully bringing in an alien without presentation, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and (iii).
This is one of my cases on appeal -- I did not handle the trial -- so I'm happy to share the good news!
The Court held the district court plainly erred in admitting the material witness’s videotaped deposition testimony: "[T]he district court clearly erred in admitting the material witness’s deposition testimony because the government failed to present any evidence establishing the witness’s unavailability, and the district court did not make an unavailability finding. The error affected Murad’s substantial Confrontation Clause rights and seriously affected the fairness of the proceedings. The deposition testimony constituted the only evidence proving certain elements of the offenses, and Murad asserts the testimony would not have been admitted had she objected at trial. There are indications in the record that the material witness was available, including the witness’s promise under oath to return for trial, the availability of travel documents authorizing return, and the lack of any indication that the witness had lost contact with his attorney. Furthermore, the record does not indicate the government could have established a good-faith effort to obtain the witness’s presence at trial had Murad objected. Accordingly, Murad satisfies all four requirements of the plain error standard."
